Blanche v. First Nationwide Mortg. Corp.

• Decision Date: 14 March 2002
• Docket Number: No. 05-00-01327-CV.,05-00-01327-CV.
• Citation: 74 S.W.3d 444
• Parties: Andrew E. BLANCHE, Jr. and Cynthia D. Blanche, Appellants, v. FIRST NATIONWIDE MORTGAGE CORPORATION, Appellee.
• Court: Texas Court of Appeals

74 S.W.3d 444

Andrew E. BLANCHE, Jr. and Cynthia D. Blanche, Appellants, v. FIRST NATIONWIDE MORTGAGE CORPORATION, Appellee.

No. 05-00-01327-CV.

Court of Appeals of Texas, Dallas.

March 14, 2002.

Cynthia D. Blanche, Bristow, VA, for appellants.

Marcus Daniel Guerra, Drenner & Stuart, L.L.P., Roy Kemp Kasling, The Law Offices of R. Kemp Kasling, P.C., Austin, for appellee.

Before Justices LAGARDE, MORRIS, and JAMES.

OPINION

JOSEPH B. MORRIS, Justice.

This is a summary judgment case. In the court below, Andrew and Cynthia Blanche sued First Nationwide Mortgage Corporation alleging various causes of action, generally contending the company wrongfully reported them as delinquent on their mortgage payments and thereby ruined their credit history. The Blanches appeal the judgment granted in favor of First Nationwide, arguing first that the company's motion for summary judgment was void because it was not signed by the attorney in charge. The Blanches further argue the motion was untimely because it was filed before they had adequate time for discovery. Finally, the Blanches present evidentiary issues, both procedural and substantive, contending their summary judgment evidence created at least a fact issue about each of their causes of action. After reviewing the record, we conclude the trial court correctly granted summary judgment on all the Blanches' claims except one. Accordingly, we affirm the trial court's judgment in part and reverse it in part.

I.

In May 1990, the Blanches purchased a house from William and Peggy Hewitt. As part of the purchase, according to First Nationwide, the Blanches assumed payment of the promissory note owed for the property.¹ Approximately one year later, the United States assessed a tax liability against the Hewitts, and the Hewitts failed to pay. To recover on the debt, the United States asserted a lien against the property the Hewitts had sold to the Blanches and, in 1995, filed suit in federal district court to foreclose on the tax lien. Both the Hewitts and the Blanches were named as parties in the suit.

On February 28, 1997, the federal district court issued an opinion stating the transfer of the property from the Hewitts to the Blanches was invalid and the property could be used to satisfy the Hewitt's tax liability. The Blanches attempted to stay enforcement of the federal court's judgment, but the court denied their motion and held that any further payments on the note by the Blanches would be voluntary. After receiving the district court's ruling, the Blanches stopped making payments on the note.

Although the federal district court no longer considered the Blanches to be the owners of the property, First Nationwide did. After the Blanches stopped making payments, First Nationwide reported to credit bureaus that the Blanches were delinquent in their mortgage payments. First Nationwide continued reporting them as delinquent even after the Blanches made the company aware of the federal court rulings. First Nationwide eventually foreclosed its lien on the property and named the Blanches as the owners of the property in the foreclosure notice.

According to the Blanches, First Nationwide's actions resulted in several instances where they were denied credit or given unfavorable credit terms. In addition, Andrew Blanche asserted he was interrogated by his employer because his credit report did not substantiate a statement he made under oath that he was current on all his debts. The Blanches filed suit against First Nationwide in 1999 alleging claims for negligence, unreasonable collection efforts, violations of the Texas Debt Collection Practices Act, violations of the Federal Fair Debt Collection Practices Act, conversion, invasion of privacy, emotional distress, and defamation. In response, First Nationwide filed a combined no-evidence and traditional motion for summary judgment on all of the Blanches' claims. The trial court granted the motion without specifying the grounds. This appeal ensued.

II.

Before we address the merits of First Nationwide's motion for summary judgment, we must resolve several procedural issues. First, the Blanches assert the motion was not properly before the trial court because it was not signed by the "attorney in charge." First Nationwide's original answer was filed by a law firm with two of its lawyers listed as the attorneys for the defendant. The second named lawyer signed the pleading, making him the "attorney in charge" pursuant to rule 8 of the Texas Rules of Civil Procedure. See Tex.R. Civ. P. 8. First Nationwide's motion for summary judgment, however, was signed by the first named lawyer, who by then had opened his own practice and taken the case with him. First Nationwide did not provide any notice to the Blanches regarding the substitution of counsel before filing the motion. The Blanches contend that because there was no formal substitution of counsel as provided for in rule 10 of the Texas Rules of Civil Procedure, the motion was void when filed.

Rule 10 states that "[i]f the attorney in charge withdraws and another attorney remains or becomes substituted, another attorney in charge must be designated of record with notice to all other parties in accordance with Rule 21a." Tex.R. Civ. P. 10. Nothing in the rule states or even suggests that a motion filed by another attorney is void unless the rule's requirements are met. Moreover, with respect to their contention that counsel was substituted without notice, the Blanches make no showing that they were prejudicially disadvantaged by the failure to follow formal substitution procedures. They argue simply that the substitution of counsel was "detrimental" to them because they sent correspondence to First Nationwide's initial attorney of record. They do not show, however, that anything they sent did not reach First Nationwide and its new lead attorney or that they failed to receive any correspondence, filings, or notices because of the substitution. Even if they had, such a showing would not compel the conclusion that the motion was void when filed. The Blanches first argument is not well taken.

The Blanches also contend First Nationwide's motion for a no-evidence summary judgment was untimely because it was filed before an adequate time for discovery had passed. Yet, the Blanches filed neither a motion for continuance nor an affidavit explaining the need for further discovery with the trial court before the summary judgment hearing. Accordingly the Blanches have waived any argument that the motion was premature. See Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex.1996); McClure v. Attebury, 20 S.W.3d 722, 729 (Tex.App.-Amarillo 1999, no pet.).

The final matter of procedure we must determine is what evidence was properly before the trial court. First Nationwide contends the vast majority of evidence submitted by the Blanches in response to the summary judgment motion was inadmissible because it was not properly authenticated. Indeed, of the nearly three hundred pages of documents submitted by the Blanches, including purported loan documents, correspondence, and court records, there is only a single affidavit, which was signed by Andrew Blanche. Although the affidavit references two attached documents, the affidavit makes no attempt whatever to authenticate these documents, nor does it attempt to authenticate any of the other documents submitted by the Blanches as summary judgment proof.

The Blanches respond that First Nationwide waived its authentication objection by failing to obtain a written order from the trial court sustaining or overruling the objection. The Blanches further argue the documents in question were self-authenticating because they were produced during discovery. In the alternative, the Blanches contend that if their summary judgment evidence is defective, the trial court erred in not granting them a continuance to cure the problem.

In support of their argument that First Nationwide waived its objection to their evidence, the Blanches rely on this Court's opinion in Giese v. NCNB Texas Forney Banking Center, 881 S.W.2d 776, 782 (Tex.App.-Dallas 1994, no writ). In Giese, we held that defects in the form of affidavits or attachments to an affidavit in support of a motion for summary judgment or response are generally waived unless objected to in the trial court. Id. at 782. The defects referred to in Giese concerned the form of the attempted authentication. Id. In this case, the Blanches made no attempt to authenticate the vast majority of their evidence, which was neither identified nor referenced in Andrew Blanche's affidavit.² A complete absence of authentication is a defect of substance that is not waived by a party failing to object and may be urged for the first time on appeal. Cf. Kotzur v. Kelly, 791 S.W.2d 254, 257 (Tex.App.-Corpus Christi 1990, no writ).

Rule 193.7 of the Texas Rules of Civil Procedure is determinative of the Blanches' contention that their evidence was self-authenticating because it was produced during discovery. See Tex.R. Civ. P. 193.7. Under rule 193.7, "[a] party's production of a document in response to written discovery authenticates the document for use against that party in any pretrial proceeding or at trial" unless the party who produced the document files a timely objection to the document's authenticity. Id. The clear purpose of this rule is to alleviate the burden on a party receiving documents through discovery from proving the authenticity of those documents when they are used against the party who produced them. Rule 193.7 does not help the Blanches here because the documents attached to their summary judgment response were not produced to them by First Nationwide, the party against whom the documents were used. Instead, the Blanches state that "most, if not all" of the documents at issue were produced by them to First Nationwide in response to discovery requests. A party cannot authenticate a...